Complaints

Search

Submission to the Senate Legal and Constitutional Legislation Committee

Legal

SUBMISSION OF THE HUMAN RIGHTS AND
EQUAL OPPORTUNITY COMMISSION

TO
THE

SENATE LEGAL AND
CONSTITUTIONAL LEGISLATION COMMITTEE ON THE AUSTRALIAN HUMAN RIGHTS COMMISSION
LEGISLATION BILL 2003

Statement
by Dr William Jonas,

Aboriginal and Torres Strait Islander Social Justice
Commissioner

(delivered
at the Public Hearing held in Sydney on 29 April 2003)

You
can also access:

I'd like to begin by acknowledging
the Gadigal people of the Eora nation, the traditional owners of the country on
which we meet.

The
statement by the President has outlined a number of key concerns relating to the
proposed Bill as they affect the Commission as a whole. I wish to address an issue
which relates specifically to the functions that I have been appointed to fulfill
- namely the proposal in the Bill to abolish the specialist position of Aboriginal
and Torres Strait Islander Social Justice Commissioner and replace it with a generalist
human rights commissioner.

I
am the second person to be appointed to the position of Aboriginal and Torres
Strait Islander Social Justice Commissioner. The position was created in 1992
with bi-partisan support as a direct response to the findings of the Royal Commission
into Aboriginal Deaths in Custody and the HREOC National Inquiry into Racist Violence.
Both reports highlighted the necessity for an ongoing independent monitoring mechanism
for the human rights situation of Indigenous peoples. The Government at the time
explained that the position was created to provide 'an annual state-of-the-nation
report' and provide 'a national and independent perspective on the extent of the
disadvantage and the action that needs to be taken. [1]

The
Social Justice Commissioner's functions are conferred in a manner that differs
from all other Commissioners at HREOC. There is recognition in the legislation
of the importance that the person exercising the functions of the Commissioner
be experienced in the community life of Aboriginal and Torres Strait Islander
peoples.

While
the Commission has criticised this requirement as too weak - it does not, for
example, require that the person in fact be Indigenous themselves, just that they
be experienced in the community life of Indigenous peoples - the legislation confers
the functions individually on the Commissioner rather than on the Commission as
a whole. It is notable as all other functions of the Commission - such as those
of the Race Discrimination or Sex Discrimination Commissioner - are conferred
on the Commission and performed by the relevant Commissioner on its behalf.

This
distinction is crucial as it means that the function to produce an annual report
on the status of enjoyment of human rights by Indigenous people (the Social Justice
Report) and the similar report on the impact of the Native Title Act on
the enjoyment of Indigenous human rights, is to be prepared by someone with experience
in the livelihoods of Indigenous peoples. In practical terms, this has meant that
with the exception of the 1998 social justice and native title reports (at which
time the Race Discrimination Commissioner was acting in the position of Social
Justice Commissioner), each annual report has been prepared by an Indigenous commissioner
and has provided an Indigenous perspective on social justice and human rights.

The
other functions of the Commissioner, namely to promote discussion and awareness
of human rights; to undertake research and educational programs, and other programs,
for the purpose of promoting respect for the human rights of Aboriginal persons
and Torres Strait Islanders; and to examine enactments, and proposed enactments,
for the purpose of ascertaining whether they recognise and protect the human rights
of Aboriginal persons and Torres Strait Islanders, are also functions directly
conferred on the Commissioner as opposed to the Commission.

The
current Bill proposes to maintain the functions of the Commissioner, but to confer
them generally on the Commission, to remove the specialist position of Social
Justice Commissioner and to remove the requirement that the person exercising
these functions on behalf of the Commission be experienced in Indigenous life.

I
have two main concerns with this approach. First, I consider - as my predecessor
Mick Dodson also did - that it is essential that the person charged with these
weighty responsibilities be an Aboriginal or Torres Strait Islander. The position
enjoys considerable respect and trust in the Indigenous community because of the
Indigenous status of the Commissioner. I would also suggest that the Indigenous
status of the Commissioner has fundamentally informed the approach to the role
and the exercise of functions over the past decade.

Second,
it is difficult to sustain an argument that there is no longer a need for a specialist
commissioner to address the specific circumstances of Indigenous peoples. It is
a simple fact that there has been inadequate progress in addressing Indigenous
disadvantage over the past decade. For example, life expectancy has begun to decline
for Indigenous people in Australia and still exists at levels comparable to the
rate for non-Indigenous Australians in the year 1900; incarceration rates and
rates of over-representation in custody have increased since the Royal Commission
over ten years ago - for example, Indigenous juveniles comprise 42% of all juveniles
in custody at any one time, despite being 2% of the general population; and there
has been limited improvement in health statistics in the past decade. It would
be a retrograde step to remove the specialist position of Social Justice Commissioner,
with functions performed by someone experienced in Indigenous life, at a time
which I consider is a crisis point for Indigenous people in this country.

I
also note that in 1999 the UN Committee on the Elimination of Racial Discrimination
urged Australia to reconsider the previous proposal to restructure the Human Rights
Commission by abolishing the Social Justice Commissioner position and replacing
it with a generalist deputy president. The Committee stated that Australia should
take into account "whether the new Deputy President would have sufficient
opportunity to address in an adequate manner the full range of issues regarding
indigenous peoples that warrant attention". In addition, "Consideration
should be given to the additional benefits of an appropriately qualified specialist
position to address these matters, given the continuing political, economic and
social marginalization of the indigenous community of Australia". [2]

Finally on the
Social Justice Commissioner I also note that in its final recommendations to Parliament,
the Council for Aboriginal Reconciliation also recommended in its draft legislation
that the Social Justice Commissioner have specific responsibilities relating to
the ongoing monitoring of reconciliation. Again, much remains to be achieved in
this regard. It is premature to abolish the position.

1.
Hansard, House of Representatives, 12 November 1992, p3341-2.

2.
UN Doc A/54/18, para. 21(2). Acting under its early warning procedures, the Committee
adopted decision 1(53) on Australia on 11 August 1998 (A/53/18, para. 22), requesting
information from Australia regarding three areas of concern: proposed changes
to the 1993 Native Title Act; changes of policy as to Aboriginal land rights;
and changes in the position or function of the Aboriginal and Torres Strait Islander
Social Justice Commissioner. Decision 2(54) was adopted on 18 March 1999.

 

Last
updated 29 April 2003.